De Ham v. Mexican Nat. R. Co.

• Decision Date: 06 April 1893
• Citation: 22 S.W. 249
• Parties: DE HAM v. MEXICAN NAT. R. CO.
• Court: Texas Court of Appeals

22 S.W. 249

DE HAM v. MEXICAN NAT. R. CO.

Court of Civil Appeals of Texas.

April 6, 1893.

Appeal from district court, Nueces county; J. C. Russell, Judge.

Action by Elizabeth De Ham against the Mexican National Railroad Company for the death of her son, Lewis De Ham. From a judgment sustaining defendant's demurrer to the complaint, plaintiff appeals. Affirmed.

McLeary & Fleming, for appellant. Nicholson, Dodd & Mullally, for appellee.

PLEASANTS, J.

The appellant brought suit in the district court of Nueces county against appellee to recover damages for injuries resulting in the death of her son Lewis De Ham, who was injured in a wreck upon the railroad of appellee in the republic of Mexico, and who died a few hours after he was injured, in the city of Laredo, Tex. The appellee's railway extends from Corpus Christi, Tex., to the city of Monterey, in Mexico, and the deceased, at the time he was injured, was in the employment of appellee, and was serving as locomotive engineer. The petition averred that the injuries were the proximate result of the negligence of the appellee; that the plaintiff was dependent upon the deceased, and that he contributed monthly to her support; and that by his death she was damaged in the sum of $30,000, and for which judgment was prayed. To this petition defendant filed the following demurrers: "Now comes defendant by counsel, and says that the allegations in plaintiff's petition are wholly insufficient in law to require any answer of this defendant; and of this the defendant prays the judgment of the court. And, specially excepting to plaintiff's petition, defendant says that it affirmatively appears thereby that her claim for damages is for injuries done to her son Lewis De Ham while in the employ of defendant, a foreign corporation, and in a foreign country, viz. the republic of Mexico, and that said injuries resulted in the death of said Lewis De Ham. Wherefore defendant says that the allegations of said petition do not show plaintiff entitled to the relief demanded, or to any relief whatever in this behalf, and of this the defendant prays the judgment of the court." The court sustained defendant's demurrer, and the plaintiff excepted, and, declining to amend, her suit was dismissed; and to the judgment plaintiff excepted, and gave notice of appeal.

The only question presented for our decision is, does the petition present a cause of action? In each of the following cases decided by our supreme court: Willis v. Railway Co., 61 Tex. 432; Railway Co. v. Richards, 68 Tex. 375, 4 S. W. Rep. 627; and Railway Co. v. McCormick, 71 Tex. 660, 9 S. W. Rep. 540, — a demurrer was sustained to the petition, and the facts averred and relied on by the plaintiff in each of these cases differed not materially from the facts set up in the petition in this case. The only difference necessary to be noticed is that in this case the deceased was injured beyond the limits of this state, but died in the state, and in each of the other cases the injuries were inflicted and the death occurred in another state than this. By article 2899 of the Revised Statutes of this state it is declared that the surviving husband or wife and children and parents of any person whose death may result from injuries inflicted by the negligence of any railway corporation may maintain an action for damages against such railway corporation; and it is insisted by appellant's counsel that it is the death, and not the injuries, which gives the right of action, and that therefore the petition shows a good cause of action; and in support of this proposition counsel cite section 4, of article 3202, p. 115, Sayles' Civ. St....